KANTA PRASAD Vs. SUVALAL

JUDGEMENT

(1.) THE Judgment Debtor/petitioner has directed this revision against the order dated 21.7.1999 passed by Civil Judge Class II Indore in Miscellaneous Civil Suit No. 45/97 thereby rejecting the objections raised on behalf of the applicant (defendant) u/s. 47 of the CPC.

(2.) BRIEFLY stated the facts of the case are that plaintiff - respondent Suvalal filed a suit for eviction of the applicant from house No. 469, situated at Kulkarni Ka Bhatta, Indore on the basis of the relationship of landlord and tenant under the provisions of M.P. Accommodation Control Act. On appearance of the defendant in the Civil Suit No. 223A/94, a compromise was filed before the trial Court and on the basis of compromise, a decree was passed in favour of respondent plaintiff on 17.11.1994. In terms of the compromise decree, the applicant defendant agreed to deliver vacant possession of the suit accommodation to the plaintiff respondent by 6.2.1996 but before the expiry of this period, the applicant - defendant has filed an application before the trial Court on 2.2.1996 alleged to be filed u/s. 47 of the CPC. In the application, it is stated that the disputed house is situated in the area Kulkarni Ka Bhatta, Indore, which is declared as gandi basti u/s. 3 of the M.P. Gandi Basti Kshetra Sudhar Tatha Nirmulan Adhiniyam, 1976. As such, in view of section 20 of the said Act, no suit was competent without obtaining prior sanction from the competent authority and the decree passed by the trial Court without obtaining such sanction is nullity and incapable of execution. The application was opposed on behalf of the respondent - plaintiff. The learned trial Court, on considering submissions and the provisions of the alleged Act. held that the decree passed by the trial Court cannot be set aside on the ground of non -compliance of the provisions of the said Act or on the ground of fraud. Court also held that the applicant should file a separate suit for that purpose and rejected the said application. Aggrieved, the applicant has filed this revision.

(3.) RIGHT at the threshold, on perusal of the impugned order and submissions of the L.C. for parties, it emerged that the alleged application U/s. 47 of the CPC was filed before filing execution of the decree passed in Civil Suit No. 223A/94. In my considered opinion, the application or objections u/s. 47 are maintainable only in an execution case when the decree holder apply for the execution of the decree passed in his favour. For the convenience section 47(1) is extracted as below: - Section 47(1) : -" questions to be determined by the Court executing decree - All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit". In this case, on perusal of the terms of the decree dated 7.2.1995 passed in Civil Suit No. 223A/94, it is found that the vacant possession of the house in question was to be delivered to the respondent - decree holder by 6.2.1996. As such, no execution was filed on behalf of the respondent decree holder as no cause of action has accrued for filing such execution. As indicated above, when no execution is pending before the trial Court, the application filed on behalf of the applicant raising certain objections u/s 47, CPC was prima facie not maintainable under the law and the application deserves to be dismissed on the aforesaid ground.